Draper, Herbert James ( 2015 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-83,478-01
EX PARTE HERBERT JAMES DRAPER, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 1337145-A IN THE 338TH DISTRICT COURT
FROM HARRIS COUNTY
Per curiam.
ORDER
Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the
clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte
Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant pleaded guilty to aggravated
robbery and was sentenced to twelve years’ imprisonment. He did not appeal his conviction.
Applicant contends, among other things, that trial counsel’s conduct rendered his plea
involuntary. Counsel responded in sworn affidavits, and the trial court made findings of fact and
conclusions of law, recommending that we deny relief.
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We believe that the record is not adequate to resolve Applicant’s claim. Applicant has alleged
facts that, if true, might entitle him to relief. Hill v. Lockhart, 474 U.S. 52 (1985); Ex parte
Patterson, 993 S.W.2d 114, 115 (Tex. Crim. App. 1999). In these circumstances, additional facts
are needed. As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1960), the
trial court is the appropriate forum for findings of fact. The trial court shall order counsel to respond
and describe his investigation of the charges and the evidence against Applicant. The trial court may
use any means set out in TEX . CODE CRIM . PROC. art. 11.07, § 3(d).
If the trial court elects to hold a hearing, it shall determine whether Applicant is indigent.
If Applicant is indigent and wishes to be represented by counsel, the trial court shall appoint an
attorney to represent him at the hearing. TEX . CODE CRIM . PROC. art. 26.04.
After reviewing counsel’s response, the trial court shall make further findings of fact and
conclusions of law as to whether counsel’s conduct was deficient and Applicant would have insisted
on a trial but for counsel’s deficient conduct. The trial court shall also order the District Clerk to
forward the reporter’s record of the plea hearing, if it is available. The trial court shall also make
any other findings of fact and conclusions of law that it deems relevant and appropriate to the
disposition of Applicant’s claim for habeas corpus relief.
This application will be held in abeyance until the trial court has resolved the fact issues. The
issues shall be resolved within 90 days of this order. A supplemental transcript containing all
affidavits and interrogatories or the transcription of the court reporter’s notes from any hearing or
deposition, along with the trial court’s supplemental findings of fact and conclusions of law, shall
be forwarded to this Court within 120 days of the date of this order. Any extensions of time shall
be obtained from this Court.
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Filed: July 29, 2015
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